Mahkamah Rayuan Malaysia
Di hadapan YA Datuk Wira Low Hop Bing, HMR
YA Dato’ Haji Abdul Malik bin Haji Ishak, HMR
YA Dato’ Ahmad bin Haji Maarop, HMR
Pihak-pihak:
PP: Semua hadir kecuali MY
PB: KS, SN, Datuk Param Cumaraswamy, Ram Karpal
[9.44 a.m.]
Rayuan Mengecualikan Hakim W09-245-2010
KS: Dengan izin YA-YA, saya ingin berhujah di dalam Bahasa Inggeris. YA, we received a notice of preliminary objection addressed to us from En. Wong Chiang Kiat yesterday. YA might want to hear the preliminary objection first.
YA: Yes. Indeed. So who will be submitting?
MHZ: I will, YA.
YA: Have you file the submission on the preliminary objection?
MHZ: Yes. I’ll be reading the full submission. YA, may I start with the grounds?
YA: Yes.
MHZ: [read submission]
This is an appeal filed by the Appellant against the decision of Justice Dato’ Mohamad Zabidin bin Mohd Diah, given on 6.12.2010, whereby, the learned trial Judge had dismissed the Appellant’s Notice of Motion dated 24.11.2010, to recuse himself (the learned trial Judge) from continuing to handle the criminal proceedings against the Appellant in Criminal Trial No. MTJ3-45-9-2009.
It must be pointed out that this is the second application filed by the Appellant to recuse the learned trial Judge in the course of this trial and we are still at the stage of cross-examination of the prosecution’s 3rd witness.
There was an earlier application filed by the Appellant on 8.2.2010, also to recuse the learned trial Judge. The said application was filed as a result of the rulings of the learned trial Judge dismissing two applications filed by the Appellant to cite Utusan Malaysia for contempt and also to issue warning to Utusan Malaysia concerning reports of the trial published in the said papers on 4th and 5th of February 2010 respectively.
KS: My learned friend should not go to the merit, but should straight away go to the preliminary objection.
YA: I agree with your learned friend. The lawyer is correct. I think you must go straight to the jurisdiction issue.
KS: My learned friend must go to the preliminary objection unless he concedes it, YA.
MHZ: I’m laying down what had happened in the lower court.
YA: The matter is in the lower court and not here. So start with page 8.
MH: [read submission]
The ruling of the learned trial Judge, in refusing to acquiesce to the Appellant’s application, to recuse himself is clearly not within the purview of the definition of ‘decision’ in section 3 of the Courts of Judicature Act 1964 (CJA).
It must be noted that the said ruling was made in the course of a trial. More importantly, it has not finally disposed of the rights of the Appellant.
It is well accepted that the rights of an Appellant to appeal against the decision of the High Court are governed by section 50 of the CJA which provides that:
50. Jurisdiction to hear and determine criminal appeals
(1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court –
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.
(2) An appeal shall lie to the Court of Appeal with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrate’s Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has effected the event of the appeal or revision. (Emphasis supplied)
(2A) …
(3) …
(4) …
The word ‘decision’ as appeared in section 50 of the CJA is defined in section 3 of the same Act as follows:
“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. (Emphasis supplied)
In the accompanying Explanatory Notes when the word ‘decision’ in section 3 of the CJA was amended, the reasons for the amendment were stated as follows:
“Pada masa ini, semasa mendengar kes, jika mahkamah membuat keputusan tentang kebolehterimaan apa-apa keterangan atau dokumen, pihak yang tidak berpuas hati boleh memfailkan rayuan. Jika rayuan sedemikian difailkan, mahkamah terpaksa memberhentikan pendengaran kes itu sementara menanti keputusan rayuan itu oleh mahkamah atasan. Ini menyebabkan pendengaran itu lambat selesai, lebih-lebih lagi apabila rayuan difailkan terhadap tiap-tiap keputusan yang dibuat oleh mahkamah bicara. Pindaan ini dicadangkan untuk membantu mempercepat pendengaran kes di mahkamah bicara.” (Emphasis supplied)
YA: Can we have the english version as well?
MHZ: I refer to our the bundle of authorities, tab 9, page 2.
YA: This is the original one?
MH: Yes. [continue reading submission]
In Dato’ Seri Anwar Bin Ibrahim v Public Prosecutor [1999] 1 MLJ 321, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in section 3 of the CJA, opined at p 335 that:
“A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal.” (Emphasis supplied)
Similarly in Saad Bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, the application of section 50(2) of the CJA was explained by the Court of Appeal at page 138 as follows:
“So, for the purpose of s 50(2), this court has to first ascertain whether the ‘decision’ of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not, and it would only happen after a decision had been made at the close of the defence.”
In Regina v Collins [1970] 1QB 710, the Court of Appeal of England, pursuant to a motion filed with regards to the decision of the court below in refusing to order further particulars of a count in an indictment held that:
“…the court had no jurisdiction to hear the application; that the Court of Appeal (criminal Division), having the same powers as its predecessor, the Court of Criminal Appeal, which was created by the Criminal Appeal Act 1907, had no statutory jurisdiction to hear an interlocutory appeal; that since the court was created by statute, it had no powers beyond those conferred on it by Parliament. Accordingly, there was no inherent jurisdiction to hear interlocutory appeals.” (Emphasis supplied)
The above case did not define ‘interlocutory’ nor ‘interlocutory appeal’. However, in Black’s Law Dictionary (Eight Edition), the word ‘interlocutory’, (when referring to an order, judgment, appeal etc.) is defined as ‘interim or temporary, not constituting a final resolution of the whole controversy.’
On the other hand, the phrase ‘interlocutory appeal’ is defined in Black’s Law Dictionary (Eight Edition) as ‘an appeal that occurs before the trial court’s final ruling on the entire case.”
It cannot be gainsaid that the appeal filed by the Appellant herein is actually an interlocutory appeal as it was ‘an appeal that occurs before the trial court’s final ruling on the entire case.’ Such being the case, the definition of the word ‘decision’ in section 3 of the CJA, would clearly preclude the Appellant from pursuing with this appeal.
Therefore, the Court of Appeal is not reposed with the jurisdiction to hear this appeal.
This Honourable Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor (Court of Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), which was an earlier appeal filed by the Appellant against the ruling of the learned trial Judge in refusing to allow the defence to inspect the section 112 statement of the complainant, held that:
“(1) We are of the view that the ruling of the learned trial Judge was made in the course of a trial where the rights of the Appellant has not been fully disposed off. Therefore the ruling in refusing to allow the statements of the complainant recorded under section 112 Criminal Procedure Code, to be produced for inspection by the
Appellant is not within what is envisaged by the definition of “decision” as provided for by section 3 of Courts of Judicature Act 1964.
(2) Our jurisdiction to hear and determine the appeal is governed by section 50 of Courts of Judicature Act 1964. We have no jurisdiction to hear an appeal which is not against a decision made by the High Court.”
The Court of Appeal in the above case then proceeded to examine the term “decision” as defined in section 3 of the CJA, the explanatory statement accompanying the amendment to the term “decision” and the relevant authorities illustrating the said term.
Having done do, the Court of Appeal held that:
“(4) It cannot be gainsaid that the appeal filed by the Appellant herein is really an interlocutory appeal as it is an appeal that occurs before the trial’s court final ruling on the entire case.
(5) Therefore we have no jurisdiction to hear and determine this appeal.”
The Federal Court had recently also dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, where it was explained that:
“[24] The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial.
This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:
2 Clause 2 seeks to amend section 3 of Act 91.
At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.
[25] Quite apart from the explanatory statement to the Bill the definition of ‘decision’ by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the appeal, if any, to be filed after the trial process is brought to its conclusion.
CONCLUSION
[26] For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a ‘decision’ as defined in s 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.”
Surely, the ruling of the learned trial Judge not to recuse himself could not have been a “decision” as envisaged by section 3 of the CJA. It must be remembered that the present application is a second application by the Appellant to recuse the trial Judge. There could be many more to come. To permit the Appellant to appeal for each and every such ruling would be to permit the defence to stall ‘a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial, which was clearly forbidden by the Federal Court. (Emphasis supplied)
Applying the principles as enunciated by the Federal Court in the above case, it is rather obvious that the ruling of the learned trial Judge is refusing to acquiesce to the demand of the defence for him to be recused, is definitely a non-appealable ruling.
On this preliminary issue alone, we respectfully urge this Honourable Court to dismiss the Appellant’s appeal for want of jurisdiction.
YA: So that concludes your submission on the preliminary objection?
MHZ: Yes.
YA: And also I have your skeletal submission, KS.
KS: First, as to what constitutes a final order it is important to apply the principle in Section 3. What does the amendment of Section 3 says? [read Section 3 of Courts of Judicature Act 1964. []. That would be a final order with regard to the application before your Lordship this morning.
YA: []
KS: A procedural ruling which is made to dispose the rights of the parties could not be a final matter. A procedural matter. A recusal of a judge. Does it involves the decision upon it be procedural or substantive? We say it is substantive.
We say that this court, Court of Appeal comes from a lower court. It’s a form of rehearing. Your Lordship must step into the shoes of the trial judge. We say that the recusal of the learned trial judge is a final order. The reason is this, at this stage if the learned trial judge recused himself that would have been the end of the matter. Your Lordship ought to step into the shoes of the trial court. If he would to recuse himself, that would be a final order. Just because he did not recuse himself does not mean it is not a final order. Because if he recuse himself then another judge would have to take over. That is the matter would take into the proper subjective.
There is no objection on the application we made for stay pending appeal. That would be the authority in the case of Rowstead System Sdn Bhd v Bumicrystal Technology Sdn Bhd [2005] 3 MLJ 132 which is in tab 2 of our bundle. Of course my learned friend would have taken objection on that alone. In other application pending before the court of appeal and application for stay was made it has always been the stand of the prosecutor that it is not final order and therefore stay should not be granted.
We say that Saad bin Abas had been wrongly decided. Is this strong bench brave enough to be part of the decision? What does Saad bin Abas said? It depends on this court that it is not a final order. If it goes against the prosecutor and at the end of the case defence is not called and the person acquitted, then it become a final order. And the prosecutor ought to appeal because it is a final order. What if the Court of Appeal reverses the decision that defence ought to be called? That is why I say it would be in the form of re-hearing. Your Lordship must place your Lordship in the shoes of the trial judge. Otherwise your Lordship will failed your Lordship duty as judges and going against the [] form of justice.
We say clearly this ruling made by the earned trial judge is a final order. It is for you to say that the learned judge if he recuse himself is a final order. In other words, the right of the accused will be finally determined.
The principle is enunciated in the Federal Court in Dato’ Seri Anwar Ibrahim’s case. And the principle also lay out in light term in various occasion. In fact in application in the form of Dato’ Seri Anwar Ibrahim’s trial in the High Court. Compare to here YA, under the circumstances applying these principles to the fact, or to the petition or the perspective in this application we say this court has jurisdiction to hear the appeal and therefore the court should dismissed my learned friend’s preliminary objection and proceed with the merits of the application.
YA: First, can you reply to your learned friend contention in Saad bin Abas? Your learned friend says that the decision in Saad bin Abas is wrongly decided. Secondly, on the issue of no objection during the application for stay pending appeal.
MHZ: In Saad bin Abas, decision has been confirmed and affirmed by the Federal Court in Letchumanan. Second, my learned friend raised the issue when the defence is not called then there’s a right to appeal.
YA: Wait. You said that Saad bin Abas has been affirmed in Letchumanan in Federal Court?
MHZ: Yes.
YA: What’s the citation?
MHZ: We don’t have it right now but I undertake to supply it to you later, YA. On the issue of calling of defence, of course those instances are within the ambit of the definition of the word “decision” where it is a final order and thus is a decision within the definition of Section 3 because it is a final order because the case has been finally disposed and the thus the rights of the parties has been disposed. That is the reply for Saad bin Abas.
Next, when my learned friend says that we did not object for the application of stay, there are 2 reasons, i.e. jurisdiction of this court to hear the appeal and the application of stay and that is two different issue and should be deal separately. That is my reply.
YA: Yes, KS?
KS: Art.8(1) of the Federal Constitutions provides for equality before the law and everyone is entitled to protection before the law. In other word it depends on this court to decide whether it is appealable or not. If defence is not called, and the person is acquitted, then the Public Prosecutor has the right to appeal. [] equality. Your Lordship should consider this application within the context of Art 8(1) of the Federal Constitution. There should not be discrimination between an accused person and the prosecutor.
That would be all Thank you, my Lords.
YA: We will give our major consideration on this submission and will continue at 11.00 a.m. Mahkmamah ditangguhkan kepada pukul 11 pagi.
[10.15 a.m.]
[11.02 a.m.]
YA: Kami mengucapkan terima kasih kepada TPR-TPR yang bijaksana dan peguam-peguam yang bijaksana yang telah mengemukakan hujah-hujah secara berkemahiran. Dan setelah mempertimbangkan hujah2 tersebut, ini adalah keputusan kami sebulat suara.
Secara ringkas, keputusan kami adalah berikut:
The question raised for our determination revolves around the jurisdiction to hear this appeal and the accused right to appeal on the basis of Section 50 (1)(a) and Section 3 of the Courts of Judicature Act 1964 upon the true construction of the word “decision” in Section 50(1)(a) read with section 3 of the Courts of Judicature Act 1964, we are of the view that the ruling of the learned High Court judge was made in the course of the trial and therefore outside the ambit of Section 50(1)(a) and section 3 of the Courts of Judicature Act 1964. We therefore hold that this court has no jurisdiction to hear this appeal and similarly the accused has no right to appeal at the interlocutory stage before the High Court . In those circumstances we unanimously sustain the prosecution preliminary objection and dismis the appeal by the accused.
MH: Terima kasih, YA.
YA: Mahkamah ditangguhkan.
[11.06 a.m.]
